Citation Nr: 0003942
Decision Date: 02/15/00 Archive Date: 02/23/00
DOCKET NO. 98-09 660 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUES
1. Entitlement to service connection for diabetes mellitus.
2. Entitlement to service connection for cataracts.
3. Entitlement to service connection for hypertension.
4. Entitlement to service connection for kidney disability.
5. Entitlement to service connection for Charcot's disease
of the right foot.
6. Entitlement to service connection for Paget's disease.
7. Entitlement to service connection for bilateral hearing
loss disability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The veteran served on active duty from June 1941 to November
1945. He had inactive duty training and brief periods of
active duty for training between 1939 and 1975.
In December 1996, the RO denied the benefits sought on
appeal, and the veteran appealed that decision.
The RO denied service connection for migraine headaches,
disability due to stress, earaches, and irregular heart beats
in September 1998 and informed the veteran of its decisions
at that time. There is no indication of record that the
veteran has initiated an appeal as to these decisions.
Therefore, the Board has no jurisdiction over these claims
and they will not be addressed further herein.
FINDINGS OF FACT
1. There is no competent medical evidence of record of a
nexus between the veteran's diabetes mellitus, which was
first shown in April 1982, and the veteran's service or any
incident of service origin.
2. There is no competent medical evidence of record of a
nexus between the veteran's cataracts disability, which was
first shown in January 1986, and the veteran's service or any
incident of service origin.
3. There is no competent medical evidence of record of a
nexus between the veteran's hypertension, which was first
shown in September 1985, and the veteran's service or any
incident of service origin.
4. There is no competent medical evidence of record of a
nexus between the veteran's kidney disability, which was
first shown in May 1994, and the veteran's service or any
incident of service origin.
5. There is no competent medical evidence of record of a
nexus between the veteran's Charcot's disease of the right
foot, which was first shown in June 1993, and the veteran's
service or any incident of service origin.
6. There is no competent medical evidence of record of a
nexus between the veteran's Paget's disease, which was first
shown in April 1982, and the veteran's service or any
incident of service origin.
7. There is no competent medical evidence of record of a
nexus between the veteran's bilateral hearing loss
disability, which was first diagnosed in January 1992, and
the veteran's service or any incident of service origin.
CONCLUSIONS OF LAW
1. The claim for service connection for diabetes mellitus is
not well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
2. The claim for service connection for cataracts is not
well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
3. The claim for service connection for hypertension is not
well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
4. The claim for service connection for kidney disability is
not well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
5. The claim for service connection for Charcot's disease of
the right foot is not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
6. The claim for service connection for Paget's disease is
not well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
7. The claim for service connection for bilateral hearing
loss disability is not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
At the outset of its discussion, the Board wishes to make it
clear that complete service medical records are unavailable,
apparently due to the 1973 National Personnel Records Center
(NPRC) fire. Since VA has been unable to obtain the
veteran's service medical records, it has a heightened duty
to explain its findings and conclusions. O'Hare v.
Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski,
2 Vet. App. 83, 85 (1992). The Board's analysis of this
veteran's claims is undertaken with this duty in mind.
Each of the claims at issue is a claim of entitlement to
service connection. Thus, each shares certain common
requirements. In the interest of clarity and brevity, laws
and regulations pertinent to each of the service connection
claims will be set forth first, followed by sequential
factual backgrounds and analyses of the claims.
Pertinent law and regulations
Service connection
In order to establish service connection, a veteran must
demonstrate that there is a disability present which is the
result of disease or injury which was incurred or aggravated
in service. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 1991); 38
C.F.R. § 3.303 (1999).
Diabetes mellitus, cardiovascular-renal disease, including
hypertension, arthritis, and organic diseases of the nervous
system will be rebuttably presumed to have been incurred in
active military service if it is manifested to a degree of 10
percent within one year following separation from a period of
active military service lasting 90 or more days.
38 U.S.C.A. §§ 1101(3), 1112(a), 1113 (West 1991 & Supp.
1998); 38 C.F.R. §§ 3.307, 3.309 (1999).
Well grounded claim requirements
The initial inquiry as to any issue presented on appeal is
whether the claim is well grounded. A well grounded claim is
a plausible claim, one which is meritorious on its own or
capable of substantiation. Murphy v. Derwinski, 1 Vet. App.
78 (1990). A mere allegation of service connection is not
sufficient; there must be evidence in support of the claim
that would "justify a belief by a fair and impartial
individual that the claim is plausible." See 38 U.S.C.A. §
5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).
In order for a claim to be well grounded, there must be
competent evidence of a current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (medical and some lay evidence); and of a
nexus between the in-service injury or disease and the
current disability (medical evidence is required). Caluza v.
Brown, 7 Vet. App. 498 (1995).
As will be discussed below, the veteran and his spouse have
stated that various claimed disabilities are related to his
service. Because they are laypersons without medical
training or experience, they are not capable of indicating
that any current disability was caused by his service.
Competent medical evidence is required. See Espiritu v.
Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v.
Derwinski, 5 Vet. App. 91, 93 (1993); Caluza.
The United States Court of Appeals for Veterans Claims has
held that a layperson's accounts of statements made by
physicians cannot render a claim well grounded. The
connection between what a physician said and the layperson's
account of what the physician purportedly said, filtered as
it was through a layperson's sensibilities, is simply too
attenuated and inherently unreliable to constitute "medical"
evidence. Robinette v. Brown, 8 Vet. App. 69, 74 (1995).
Entitlement to service connection for diabetes mellitus.
Factual background
As noted above, medical records from the veteran's active
service during World war II are missing and are presumed lost
in a fire in 1973. A June 1970 reserve service examination
report is of record. At the time, the veteran denied having
or having had symptoms which could be attributable to
diabetes mellitus, and clinically, his endocrine system was
normal and there was no sugar in his urine.
An April 1982 VA medical record notes that the veteran had
diabetes mellitus at that time. More recent VA medical
records also diagnose diabetes mellitus.
A March 1996 VA medical record indicates a reported history
of diabetes mellitus since 1969.
In November 1997, the veteran's wife stated that doctors at a
VA hospital in 1982 had said that the veteran's diabetes
mellitus was due to service.
Analysis
The first prong of the Caluza well groundedness test is met,
as there is competent medical evidence of record of current
diabetes mellitus disability, as reflected by the April 1982
and more recent VA medical records.
The second prong of the Caluza well groundedness test is not
met, as there is no competent evidence of record showing
symptoms of or treatment for diabetes mellitus in active
service. All service medical records pertaining to active
duty, as well as the June 1970 reserve examination report,
are pertinently negative.
The Board is of aware that a March 1996 VA medical record
refers to diabetes since 1969. Setting aside the fact that
the veteran was not on active duty in 1969, the unenhanced
history contained in the March 1996 VA medical record is not
competent evidence of diabetes in 1969, since it appears to
be mere transcription of the veteran's statements to that
effect. LeShore v. Brown, 8 Vet. App. 406, 409 (1995);
Reonal v. Brown, 5 Vet. App. 458 (1993).
The third prong of Caluza is not met, as there is no
competent medical evidence of record of a nexus between the
veteran's current diabetes mellitus disability and his
service.
Entitlement to service connection for cataracts.
Factual background
The June 1970 reserve service examination report is of
record. At the time, the veteran denied having or having had
eye trouble, and clinically, his eyes were normal, his visual
acuity was 20/20, and his field of vision was 180 degrees.
A January 1986 VA medical record diagnosed early cataracts.
More recent VA medical records show continued cataract
disability.
In July 1996, the veteran reported that he had eye problems
during his World War II service, and that he was told that
his current eye problems were due to his not using eye
protection while on the firing range during active World War
II service.
In November 1997, the veteran's wife stated that she had been
married to the veteran since 1951 and that he had complained
of blurred vision before their marriage. Moreover according
to the veteran's wife, VA physicians in May 1982 said that
the veteran's vision problems were service related.
Analysis
The first prong of the Caluza well groundedness test is met,
as there is competent medical evidence of record of current
cataract disability, as reflected by the January 1986 and
more recent VA medical records.
The second prong of the Caluza well groundedness test is not
met, as there is no competent evidence of record showing
symptoms of or treatment for cataracts in service. The third
prong of Caluza is not met, as there is no competent medical
evidence of record of a nexus between the veteran's current
cataracts disability and service.
3. Entitlement to service connection for hypertension.
Factual background
The June 1970 reserve service examination report is of
record. At the time, the veteran denied having or having had
symptoms which could be attributable to hypertension, and
clinically, his chest, heart, and vascular system were
normal, a chest X-ray was negative, and his blood pressure
was 120/76.
A September 1985 VA medical record notes that the veteran had
had a recent onset of hypertension. More recent VA medical
records also diagnose hypertension.
In November 1997, the veteran's wife stated that VA
physicians in May 1982 had said that the veteran had a
service-related heart problem.
Analysis
The first prong of the Caluza well groundedness test is met,
as there is competent medical evidence of record of current
hypertension disability, as reflected by VA medical records.
The second prong of the Caluza well groundedness test is not
met, however, as there is no competent evidence of record
showing symptoms of or treatment for hypertension in service.
The third prong of Caluza is not met either, as there is no
competent medical evidence of record of a nexus between the
veteran's current hypertension disability and service.
4. Entitlement to service connection for kidney disability.
Factual background
The June 1970 reserve service examination report is of
record. At the time, the veteran denied having or having had
symptoms which could be attributable to kidney disability and
clinically, his abdomen, viscera, and genitourinary system
were normal. Additionally, urinalysis was negative for
albumin.
A May 1994 VA medical record diagnoses mild renal
insufficiency. More recent VA medical records show continued
renal disability.
Analysis
The first prong of the Caluza well groundedness test is met,
as there is competent medical evidence of record of current
kidney disability, as reflected by the May 1994 and more
recent VA medical records.
The second prong of the Caluza well groundedness test is not
met, as there is no competent evidence of record showing
kidney symptoms or treatment in service. The third prong of
Caluza is not met either, as there is no competent medical
evidence of record of a nexus between the veteran's current
kidney disability and service.
5. Entitlement to service connection for Charcot's disease
of the right foot.
Factual background
On reserve service examination in June 1970, the veteran
denied having or having had foot trouble, and clinically, his
lower extremities and feet were normal.
A June 1993 VA medical record notes that the veteran had
Charcot's disease of the right foot due to diabetic
neuropathy. More recent VA medical records confirm this.
In November 1997, the veteran's wife stated that VA
physicians in May 1982 said that the veteran's Charcot's
arthritis of his right foot was service related.
Analysis
The first prong of the Caluza well groundedness test is met,
as there is competent medical evidence of record of current
Charcot's disease of the right foot, as reflected by the June
1993 and more recent VA medical records.
The second prong of the Caluza well groundedness test is not
met, as there is no competent evidence of record showing
symptoms of or treatment for Charcot's disease of the right
foot in service. The third prong of Caluza is not met, as
there is no competent medical evidence of record of a nexus
between the veteran's current Charcot's disease of the right
foot and service.
6. Entitlement to service connection for Paget's disease.
Factual background
On June 1970 reserve service examination, the veteran denied
having or having had any joint symptoms or any bone, joint,
or other deformity, and clinically, his musculoskeletal
system was normal.
An April 1982 VA medical record diagnoses Paget's disease.
More recent VA medical records also diagnose Paget's disease.
A May 1993 VA radiographic report notes that it affects the
veteran's right and left pubic bones and his right iliac and
ischial bones. A May 1995 VA radiographic report indicates
that Paget's disease affects all of the veteran's left pelvic
bones.
Analysis
The first prong of the Caluza well groundedness test is met,
as there is competent medical evidence of record of current
Paget's disease disability, as reflected by the April 1982
and more recent VA medical records.
The second prong of the Caluza well groundedness test is not
met, as there is no competent evidence of record showing
symptoms of or treatment for Paget's disease in service. The
third prong of Caluza is not met, as there is no competent
medical evidence of record of a nexus between the veteran's
current Paget's disease disability and service.
7. Entitlement to service connection for bilateral hearing
loss disability.
Factual background
Service personnel records reveal that during World War II the
veteran earned the expert infantryman badge and a carbine
rifle sharpshooter award but that he had not been in any
campaigns. They also showed that he had been a platoon
sergeant in an engineer battalion supervising, among other
things, demolition building.
The veteran's service medical records are pertinently
negative. On June 1970 service department reserve service
examination, the veteran denied having or having had ear
trouble or hearing loss, and clinically, his ears were
normal. Audiometry was conducted, with the following
results:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
5
5
10
LEFT
10
5
5
5
10
In January 1992, the veteran stated that he had hearing loss
which began in 1940. He denied being treated for it since
service discharge. On VA audiometric evaluation in January
1992, the veteran reported a history of artillery exposure.
Bilateral sensorineural hearing loss disability was present.
On VA audiometric evaluation in April 1992, the veteran
reported a history of artillery weapons fire in World War II,
and he denied a history of occupational or recreational noise
exposure. He stated that for the past 1 1/2 years, he had
difficulty understanding speech, especially in background
noise situations.
A December 1995 VA audiometric report shows continued
bilateral hearing loss disability.
In June 1996, the veteran asserted that hearing loss began in
1941 and that he was now receiving treatment for it from VA.
In July 1996, the veteran stated that he has been told that
his hearing loss problem began because he did not use ear
plugs on the artillery range during firing practice during
his World War II service.
A November 1997 letter from the veteran's wife indicates that
she married the veteran in March 1951 and that before their
marriage, the veteran complained of hearing problems. She
stated that the veteran was treated for hearing loss at a VA
Medical Center in May 1982, and that all of the doctors there
concurred that the veteran's hearing loss was service
related.
Analysis
The first prong of the Caluza well groundedness test is met,
as there is competent medical evidence of current bilateral
hearing loss disability, as reflected by the VA medical
records starting in 1992.
The second prong of the Caluza well groundedness test is also
met by the veteran's reported his history of exposure to loud
noises from weapons firing in service.
In determining whether a claim is well grounded, the
claimant's evidentiary assertions are presumed true unless
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion. See King v.
Brown, 5 Vet. App. 19, 21 (1993).
The third prong of Caluza is not met, however, as there is no
competent medical evidence of record relating the veteran's
diagnosed sensorineural hearing loss disability to service.
The Board cannot conclude on its own, in the absence of a
medical opinion indicating that the veteran's sensorineural
hearing loss disability is probably related to acoustic
trauma, that there is a nexus to service. The Board may not
make conclusions as to medical matters when those conclusions
are not provided by medical evidence of record. See Colvin
v. Derwinski, 1 Vet. App. 171 (1991).
In short, competent medical evidence of a nexus between the
veteran's current bilateral hearing loss disability and
service has not been submitted. Therefore, the claim is not
well grounded and must be denied.
Additional matters
With respect to the issues on appeal, as indicated above, the
statements from the veteran and his wife are not competent
medical evidence of a nexus to service. They are both
laypersons, and as such, they are incapable of indicating
when a disability had its onset or what its etiology was.
See Espiritu and Grottveit, supra.
In addition, the statements of the veteran's spouse to the
effect that she had been informed by unnamed physicians that
the veteran's disabilities were related to service does not
constitute competent medical nexus evidence. See Robinette,
supra.
As discussed above, the bulk of the veteran's service medical
records, dating to World War II, are missing. There is no
indication that there are any outstanding medical records
which can be obtained and which, if obtained, would result in
the claims being well grounded. VA has done what is
necessary to assist the veteran in securing all pertinent
service department and VA records which may exist. The only
service medical record which has been obtained is the June
1970 service department examination report, which does not
support any of the claims. Attempts to obtain all pertinent
VA medical records have produced a fairly large number of
records.
Because the veteran's claims are not well grounded, VA is
under no duty to assist him in developing facts pertinent to
the claims. 38 U.S.C.A. § 5107(a). VA's duty to assist
depends upon the particular facts of the case, and the extent
to which VA has advised the claimant of the evidence
necessary to support a VA benefits claim. See Robinette v.
Brown, 8 Vet. App. 69, 78 (1995). The Court has held that
the obligation exists only in the limited circumstances where
the veteran has referenced other known and existing evidence.
Epps v. Brown, 9 Vet. App. 341, 344 (1996). In this case, VA
is not on notice of any known and existing evidence which
would render the veteran's claims plausible. The Board's
decision serves to inform the veteran of the kind of evidence
which would be necessary to make his claims well grounded, in
essence competent medical evidence which tends to relate the
disabilities at issue to service.
ORDER
A well-grounded claim not having been submitted, entitlement
to service connection for diabetes mellitus is denied.
A well-grounded claim not having been submitted, entitlement
to service connection for cataracts is denied.
A well-grounded claim not having been submitted, entitlement
to service connection for hypertension is denied.
A well-grounded claim not having been submitted, entitlement
to service connection for kidney disability is denied.
A well-grounded claim not having been submitted, entitlement
to service connection for Charcot's disease of the right foot
is denied.
A well-grounded claim not having been submitted, entitlement
to service connection for Paget's disease is denied.
A well-grounded claim not having been submitted, entitlement
to service connection for bilateral hearing loss disability
is denied.
Barry F. Bohan
Member, Board of Veterans' Appeals